Thursday, January 28, 2010

Everybody's talkin', Part 3

Finishing up my criticism of Glenn Greenwald's seriously misguided and legally inadequate defense of the Supreme Court's ruling in Citizens United v. Federal Election Commission, we come to the issue of corporate personhood. As Greenwald acknowledged, that was
the central principle which critics of this ruling find most offensive - that corporations possess "personhood" and are thus entitled to Constitutional (and First Amendment) rights....
But as before, Greenwald raises an issue only to dismiss it out of hand, saying that such personhood
has also been affirmed by decades of Supreme Court jurisprudence; tossing that principle aside would require deviating from stare decisis every bit as much as the majority did here.
That's a truly strange argument: It means he is bushing off those who objected to corporate personhood because doing something about it would require overturning precedent, which is exactly the course he approved in Citizens United. Yes, he's doing it to say that critics who objected to the Court overturning precedent in the case are being inconsistent, but he's doing that by being inconsistent himself in precisely the same way.

He also claims that "most commenters" who objected to his stand argued that corporations are not "persons" and money is not speech, arguments he calls "bizarre" on the grounds that none of the justices, including the dissenters, made either argument. Now, I did not read through the nearly 800 comments to see if people really were, as Greenwald asserts, consistently "pretending" that the ruling's dissenters took either of those stands. Perhaps some, perhaps "most," did. I don't know.

I also don't care because it's completely irrelevant. Both those contentions - corporations are "legal persons" and money is speech - are currently accepted jurisprudence. As Greenwald gleefully notes, quoting it twice, Justice Stevens said in his dissent "of course ... speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation," and "no one suggests the contrary." But all that means is that the four dissenters were merely following precedent - that is, doing what the majority did not. Unless the general run of commenters actually did insist that the dissenters openly rejected corporate personhood, Greenwald is trying to win the pot with a pair of deuces.

What's more, the question raised in the case, the question before the justices, really had nothing directly to do with corporate personhood or money as speech. Those were not issues to be resolved. What was at issue was the authority of government to regulate speech in pursuit of a compelling state interest of establishing and maintaining the integrity and fairness of the political process. The dissenters, as is customary, focused on the issues in the case at hand and avoided wider ones. Sweeping judgments are not unknown in the history of SCOTUS, but they are rare.

Which means, in turn, for Greenwald to dismiss the relevance of corporate personhood and money as speech to the broader questions raised by the decision, questions such as, as I said earlier
its existence as precedent and the longer-term impact of the philosophy contained in it, one under which putting any restrictions on money in politics becomes an untenable limit on free speech,
is, yet again, intellectually dishonest. He's avoiding the issue by raising technicalities, trying to say in effect "corporate personhood is entirely irrelevant to the issue of the impact of this decision because the Court didn't address it."

However, that is simply untrue both logically and factually: Corporate personhood is relevant to the potential impact, so while it was unlikely to happen, such a direct challenge to that concept would have been welcome, at least to me. It does appear right now that it's an issue of which many people first became aware as the result of the Citizens United ruling. However, it's been around for some time and is the source of more than one egregious decision. I addressed the issue in this space once before, in February 2004, where I cited the work of progressive talk show host Thom Hartmann. I had been aware for some time of the notion that corporations are "legal persons" with (at least) many of the same rights as actual persons - I vaguely recall writing something about it in the mid-1970s - but it was from Hartmann that I learned about the origin of it, an origin that makes it an especially egregious notion. I wrote:
The "legal persons" doctrine supposedly arose from Santa Clara County v. Southern Pacific Railroad, a tax case the Supreme Court decided in 1886. However, Hartmann has learned that nowhere in the actual decision did the Court rule that "corporations are persons!" The phrase actually occurs in the summary written by a court reporter of the arguments presented in the case.

What apparently happened, based on letters reproduced on Hartmann's site, is that before arguments began, the Court said it didn't want to hear about whether or not the 14th Amendment applied to "corporations such as are parties in these suits" because the Court felt that it did. Court reporter J.C. Bancroft Davis asked if that should be included in his summary of the case. In reply, Chief Justice Morrison Remick Waite said it didn't really matter one way or the other "as we avoided meeting the constitutional questions in the decision." Davis chose to include it and on that was built an entire edifice of corporate-friendly decisions.
Writing in 2002, in a piece adapted from his book Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights, Hartmann suggested a darker possibility than a mere casual choice:
The claim that corporations are persons was added by the court reporter who wrote the introduction to the decision, called “headnotes.” Headnotes have no legal standing.

It appears that corporations acquired personhood by persuading a court reporter and a Supreme Court judge to make a notation in the headnotes of an unrelated law case. In Everyman's Constitution, legal historian Howard Jay Graham documents scores of previous attempts by Supreme Court Justice Stephen J. Field to influence the legal process to the benefit of his open patrons, the railroad corporations. Field, as judge on the Ninth Circuit in California, had repeatedly ruled that corporations were persons under the 14th Amendment, so it doesn't take much imagination to guess what Field might have suggested Court Recorder J.C. Bancroft Davis include in the transcript, perhaps even offering the language, which happened to match his own language in previous lower court cases.

Alternatively, Davis may have acted on his own initiative. This was no ordinary court reporter. He was well-connected to the levers of power in his world, which in 1880s America were principally the railroads, and had, himself, served as president of the board of a railroad company.

Regardless of how it happened, an amendment to the Constitution, designed to protect the rights of African Americans after the Civil War, passed by Congress, voted on and ratified by the states, and signed into law by the president, was re-interpreted in 1886 for the benefit of corporations. The notion that corporations are persons has never been voted into law by the people or by Congress, and all the court decisions endorsing it derive from the precedent of the 1886 case - from Davis' error.
As I wrote in that 2004 post, there are two salient points here: One, not only did the Court not say corporations are legal persons, it avowedly "avoided meeting" the question - so the subsequent assumption that it did say corporations are persons is just that: a false assumption. Second and more importantly to the present case, the issue on which the justices apparently agreed was not about if corporations have the rights of actual people but if they deserved due process under the 14th Amendment. So even what the justices agreed on did not really have anything to do with corporate "free speech" rights.

But Greenwald is not interested in any of that, indeed he won't have it. He not only accepts corporate personhood, he embraces it, he advocates it as a necessary part of the defense of liberty. In typical lawyer fashion, though, he doesn't defend it directly, instead he does it by arguing by extremes, that is, insisting if you believe A, you must also believe B, C, D, E, and so on. In this case, he says, if you believe corporations are not, doggone it, just like people, and therefore do not have the same free speech rights as people, then:
Do you believe the FBI has the right to enter and search the offices of the ACLU without probable cause or warrants, and seize whatever they want?

Do they have the right to do that to the offices of labor unions?

How about your local business on the corner which is incorporated?

The only thing stopping them from doing this is the Fourth Amendment. If you believe that corporations have no constitutional rights because they're not persons, what possible objections could you voice if Congress empowered the FBI to do these things?
Now, first off it is patently absurd to insist "the only thing stopping them" is the Fourth Amendment - the notable lack of this type of development in the nearly 100 years of living under the Constitution that preceded Santa Clara County should stand as proof enough even for Greenwald that more than the protections of the Fourth Amendment being offered to corporate "persons" is involved in that absence of tyranny. Indeed, even prior to that case it was apparently an accepted notion (because the justices thought it unnecessary to discuss it) that corporations deserved due process, which all of Greenwald's examples at the very least arguably violate.

On the other hand, while the lack of Fourth Amendment protections for corporate "persons" doesn't seem to have crushed political dissent in the 18th and 19th centuries in the US, in 1979 the claimed presence of such protections under the "corporate personhood" rubric essentially put an end to surprise safety and health inspections of incorporated businesses except under rather extraordinary circumstances. So I turn the question back to Greenwald: Is that okay with you? Another question: Do corporate "persons" have all the other rights of people under the Constitution? If not, how do you pick and choose? By your logic, I don't see how you can. So can a corporation reply to a demand for records by pleading the Fifth Amendment right against self-incrimination? Could a US corporation that's been around for 35 years run for president? How, once you say that corporations have the same rights as individuals, could you say no?

But let's not lawyer up and instead answer Greenwald's challenge directly: Does the Congress have the right to empower the FBI to do all the deliberately offensive things he suggests?

Potentially, yes, or no - depending on the nature of the responsibilities, protections, and rights of such a corporation as defined in corporate law and the corporation's charter.

It is important - it is vital - for us to remember that corporations do not actually exist in the physical world. Oh, various facilities owned by the corporation do - but the corporation itself is a legal fiction, a creation of the state, one which by design exists apart from any of the actual people involved in it. Corporations provide for those involved with them protection against certain kinds of risk - that is their whole point! And it is altogether possible for a corporation to exist without any facilities, officers, employees, agents, income, or debts, to exist solely on paper. It would be incapable of action - but legally, it would still exist.

This is why it was so incredibly outrageous for Greenwald, in the course of defending corporate personhood as some necessity of political liberty, some bulwark against tyranny, to refer to corporations as merely "organized groups of people." No, they are not and it is inane to suggest otherwise. Unincorporated groups, organizations, associations, clubs - that is, actual "organized groups of people" - whether political or otherwise, long-term or ad hoc, exist only as the aggregate of their members. No members, no group. If any unincorporated organization owns property, there will be actual people on the hook for actual debts. If there is a lawsuit, it is against people, not some disembodied legal formality. Corporations, by design, by their nature, are different.

That's the point here: Corporations are, again, designed to protect involved persons against certain types of risk. That is, by incorporating, those people gain special protections and that corporation occupies a special status, not available to others. It is entirely reasonable, logical, and Constitutional to expect that in return for that special status, that those corporations - not the individuals, the corporations - face certain restrictions on what they can do in the public arena as compared to what individuals can.

So could the FBI do all that crap Greenwald proposes? Could Congress, as he says in another hypothetical, pass a law to fine any incorporated business or organization $100,000 for each criticism it makes of the government? Yes - if we choose to define the nature of the authorities and duties of corporations in those terms. And no - if we define them in those terms instead.

We are entirely within our rights and authorities as a free people to define the rights, protections, and authorities of corporations in whatever way we choose, including imposing whatever limitations we care to place on them. We offer the privileges and protections, we set the conditions under which they are available. You don't want the restrictions? You don't incorporate.

We can and we damn well should find that corporations do not have rights of free speech even as we may well want to (and should) say they have rights of due process. If the concern is about the effect of limitations on advocacy groups, we can treat non-profits differently from for-profits (including saying that for-profits can't set up non-profits to evade the restrictions). The point is, we can choose.

To suggest otherwise, to suggest corporations, by definition, either must have all the Constitutional rights of people or they can have no rights at all, that our only choice is between allowing huge corporations to spend untold amounts of cash in support of political candidates and having the ACLU, labor unions, and the Ma-and-Pa store down the street be at constant risk of being crushed under the heel of jack-booted FBI agents, Is. Utter. Pathetic. Nonsense.

It is true that corporations are "legal persons." It is also true that they should not be.

Footnote: Just for the heck of it, check out this article on "10 Ways to Stop Corporate Dominance of Politics."

One Other Footnote: Before anyone raises it, I'm well aware that Greenwald said he is "deeply ambivalent" about the case because the question of the "compelling state interest" involved is a "hard" one. But the blunt fact is, no such ambivalence shows through in his arguments and I can't see where it was more than a passing thought with nothing "deep" about it.

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